Endgame at the Witness Stand

The Bencher—March/April 2016

By Michael Cavendish, Esquire

Perhaps the greatest chess teacher of all time, Siegbert Tarrasch (1862–1934), theorized that victory in chess depends on three factors: force, space, and time. Force means the pieces, how they can move, their strengths and weaknesses. Space incorporates the idea of the chess board, the changing geometries among the pieces as they move and shift, and the static rules that restrict how quickly those spaces grow or shrink. Time has a double meaning, directed at both how far along the player is in her progress within a game, and her relative tempo toward the condition of victory.

Discuss these with a litigator, and he will quickly agree that lawsuits have known analogs to these decisive factors of chess. Force exists in lawsuits and their trials; it is the different modules of law and fact used to build the prima facie case.

Time certainly is a litigator’s element—one side can progress faster than the other, thus establishing a favorable momentum against the opponent. Translating Tarrasch’s concept of space into lawsuits requires nuance. It is the differences in what we call the “weight” that a judge or jury will assign to a given discrete finding.

The variable weight, this variable importance of unique legal things depending upon how they are situated amidst other legal things, is analogous to the reality in chess that identical pieces can be more or less powerful, depending on where they sit on the board.

Tarrasch also demonstrated that his three factors are mutable; any of the three can be traded for another, usually for strategic purpose. In chess, one might trade a pawn (force) for the chance to move the bishop one turn sooner (time). In trials and lawsuits, the lawyer’s analogs to these factors are also mutable. The litigator as chess master might forego the chance to strike an affirmative defense (a missed transaction of force) for the opportunity to set a trial date sooner—thereby establishing a shorter motions period than might be ideal for the opposite side (a transaction of time). Significantly, Tarrasch also proposed that the advantage gained through strategic exchanges of the three factors is never lost, for the remainder of a game. The advantage gained through exchange of the mutable becomes immutable, a desirable state of affairs.

Because of mutable factors and the immutable advantage of their exchange, Tarrasch championed the strategic goal of retaining as much force—the factor easiest to exchange—as possible into the endgame. Tarrasch’s proposal was not just bound up in the theoretical. He translated his philosophy of mutability between force, space, and time into practical skills that could disrupt a chess match at a decisive moment. Consider his instruction on the chess skill known as the “fork.”

A fork is activated when the player’s piece can attack more than one of the opposing pieces from its current square. An example is when the knight piece can reach either the opponent’s knight or the opponent’s rook at the next turn.

Translated from chess to trial law, a fork can arise when the lawyer is prepared to attack the key witness’s answer to a binary question, regardless of whether the answer will be “yes” or “no.” The witness wants to be wily, keeping both options open if a key question might establish the cross-examining lawyer’s case. The lawyer treats the answers “yes” and “no” as two cherished chess pieces the witness wants to retain, and he positions his questions between them like the knight piece that can threaten both simultaneously.

Imagine this witness is a general contractor. His claim is that he was never paid for a valid invoice at the end of the construction project. After viewing some business records in discovery, the lawyer suspects the math behind the invoice does not sum well with the rest of the project. Using the business records, the lawyer plans to trap the contractor at the witness stand with the legal equivalent of Tarrasch’s fork, to reveal the fatal inconsistency, like this:

Q: This is your invoice?

A: Yes.

Q: It states an amount owed of $100,000?

A: Yes.

Q: You prepared it?

A: It was prepared at my direction.

Q: So you know what the sum stated represents?

A: Yes.

Q: It represents monies owed to the subcontractors?

The fork is in place.

The chess instructor might explain here that the lawyer is starting by placing his piece squarely within the reach of his opponent’s pieces, by asking questions (This is your invoice? You know what the sum stated represents?) that seem to assume that the witness’s document, akin to the space in which the witness’s pieces are positioned, is defensible.

Forks in witness examinations work because they begin with a usually innocuous binary question—Was X for Y?—and then, just like with the linear, logical nature of chess, use the linear nature of the witness’s desire to maintain a consistent story against the opposing linearity of the partially impeaching evidence, to show the jury or judge that the story is contradicted and has credibility problems.

Forks can be put into place any time a witness—just like an opposing chess player trying to use two pieces in the same area—wants to have things both ways, wants to have an escape route to switch to. Forks at the witness stand are devastating. They target both of the witness’s potential stories, and force the witness to commit to only one. This removes, like an abandoned chess piece, the unchosen option as an escape route when the lawyer proceeds to impeach the option chosen.

Or consider another tactic Tarrasch taught, known as the “pin.” A pin is like a fork, in that the player’s single piece threatens two opposing pieces. But pins activate when a player’s piece is aligned to attack an opposing piece and also the opposing piece behind the first target, once the first target is removed. Visualize a rook facing down, along an empty row, a bishop on a black square and a queen on the white square just behind.

In chess, pins do not unleash the same minor chaos upon the opponent that forks do. However, a pin enjoys the added benefit of trapping the opponent’s pieces—the queen with the bishop in front— for an inconvenient span of time, again creating a favorable asymmetry.

To create Tarrasch’s pin at the witness stand, the lawyer plots out a series of questions where the witness will be led into affirming a minor premise. This minor premise will be some piece of shared human experience with which almost everyone, judge and jurors included, would agree. Then, as soon as the minor premise is affirmed, the lawyer moves it away and unfurls the major premise, which is a position material to the witness’s theory of the case that is the opposite of and contradicts the minor premise.

The same lawyer who made the fork against the testifying contractor might deploy a pin upon the same witness, like this:

Q: You wrote this e-mail?

A: Yes.

Q: To your subcontractor?

A: Yes.

Q: On this same project we are talking about today?

A: Yes.

Q: Your e-mail says that his installations were defective?

A: Yes, but we made him fix them.

Q: You go on to say that if the sub doesn’t finish the work correctly, you won’t feel moved to get him the rest of his money, right?

A: Yes, I wrote that.

Q: And you were right to say that, weren’t you?

A: [Getting nervous] Yes.

Q: That’s how it works in construction, isn’t it?

A: [Confused] How what works?

Q: You don’t perform your contract, you don’t get paid, right?

A: [Cautious] Um.

Q: That’s why you were correct in what your e-mail said to this sub, right?

A: Yes, that’s right.

Q: And there was nothing wrong with you coming out and taking that position, right?

A: Nothing wrong with what I did.

The minor premise is fully committed. Now the minor premise is removed to expose the major premise.

Q: So why should your failure to complete your own contract with my client not end in the exact same result you rightly imposed on your subcontractor?

Once the minor premise is removed and the pin’s threat to the major premise is revealed, there is usually little the witness can do to escape the attack inhering in the pin. The witness can capitulate and agree that the commitment to the minor premise contradicts the major premise.

The witness can disagree, arguing that he should be treated differently than the subject of the minor premise he just committed to, an argument that will create immediate dissonance in the factfinder’s mind. Or the witness can stand mute, allowing the forceful logic, the brutally linear nature of the pin against his position on the major premise to sit there, hanging in the air, as the lawyer allows time to tick by.

None of these three possible responses favor the witness; all favor the lawyer—an immutable advantage that will last the rest of the trial. And the lawyer has not played a trick. After all, the witness’s discredited position was contrary to a fair, generally held view that the witness himself affirmed. The lawyer’s pin merely exposed that contradiction in a way that the witness did not see coming. In effect, the lawyer merely forced the witness to face his own contradiction, without leaving an avenue for escape.

Law works something like chess. Chess theory and chess strategy find analogs in lawsuits, both in theory and at practical times, such as at the witness stand.
Chess thinking, of the sort the great teacher Tarrasch developed, transfers well to practical lawyering because of its concern with diligent timing, careful use of material, and a sensibility about relative space, which lawyers would call “weight.” Chess thought is useful to rooting out and overcoming even the most onerous aspects of trials and lawsuits—liars, equivocators, procrastinators, and delayers. It can introduce useful rigor and helpful contingency planning into many of the litigator’s tasks, but especially the endgame, the cross-examination of the key witness at trial.

Michael Cavendish, Esquire, practices commercial litigation as a partner with Gunster, Yoakley & Stewart, P.A in Jacksonville, Florida. He is an alumnus of the Chester Bedell American Inn of Court.

© 2016 Michael Cavendish, Esq. This article was originally published in the March/April 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.